Amendments to the Solar Rights Act: Legislating Away Control of Common Area

Amendments to the Solar Rights Act: Legislating Away Control of Common Area

Perhaps the most contentious example of forced use of common area for environmental policy purposes concerns the installation of solar energy systems on condominium roofs. The number of U.S. homeowners who have their own solar panels has grown steadily since 2000. The increased interest in harnessing the sun’s power in the face of a rising market for high density residential living seems to have attracted the solar industry’s attention to the growing number of consumers who can’t put panels on their own roofs. Solar panels have been around for decades, but legislation relating to solar energy systems is evolving rapidly and is, in many cases ambiguous or over-reaching. Across the country, state lawmakers are taking steps to enable private companies, nonprofits, homeowners associations and others to develop and run community solar projects. Approximately twenty-five states currently prohibit or offer the ability to prohibit covenants or restrictions placed upon homeowners which would prevent the installation of solar powered panels and associated devices; however, only California expressly allows the installation of panels on common area roofs of multi-unit condominium buildings. Others suggest that common area installation is permitted with association control. Even homeowners in pro-solar states like California are struggling with unclear statutory language, a situation which has been significantly exacerbated by a recent extension of the California Solar Rights Act. California Assembly Bill 634 (effective January 1, 2018) amended the Solar Rights Act by providing homeowners with the right to install solar on the common area roofs and adjacent garages and carports of condominium properties, subject to only “reasonable” restrictions that “do not significantly increase the cost of the system...
“Hey, You Can’t Pray Here!”: Requests for Religious Meetings in Common Area

“Hey, You Can’t Pray Here!”: Requests for Religious Meetings in Common Area

Religion, like politics, is a topic people typically avoid in polite company. It provokes emotion, elicits strong opinions, and can be deeply personal. As such, religion is a topic that can spark a great deal of conflict. Community associations are not immune from this struggle. We regularly receive inquiries from managers and board members asking how to handle religious issues in their communities. One of the most common inquiries is what to do about member requests to use common area for religious meetings and prayer groups. While community associations routinely get requests from members to use common area for group meetings, associations are often particularly concerned about the ramifications of religious meeting requests because of the controversy such requests can engender. Will the membership be upset that religious meetings are being held in common area? Will chaos erupt if we grant the request despite vocal opposition on the topic at the last board meeting? Can we just ban religious meetings in general in order to avoid the issue altogether? Will we be sued for religious discrimination if we deny the member request? The simple answer to the last question is: “Yes, you can be sued.” In evaluating religious meeting requests, associations must keep in mind the requirements of California’s Unruh Civil Rights Act (“Unruh Act”) and Fair Employment and Housing Act (“FEHA). The Unruh Act and FEHA both prohibit arbitrary discrimination by community associations based on religion (amongst a variety of other factors based on personal beliefs, background, and other personal characteristics). The Unruh Act expressly guarantees to all persons in the State of California, the “full and equal...
Change is Coming! Amending Your Governing Documents to Define Community Maintenance and Repair Responsibility

Change is Coming! Amending Your Governing Documents to Define Community Maintenance and Repair Responsibility

Many CC&Rs, particularly those in older communities, do not adequately identify or define maintenance and repair responsibility for exclusive use common area components such as patios, balconies, exterior doors and similar components. And when there is uncertainty between an owner and the association as to who is responsible for a repair, disputes are inevitable. Fortunately, Civil Code Section 4775 fills in the blanks. In the absence of well-defined CC&Rs, we look to Civil Code Section 4775 which currently provides: that the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest. The problem with the above language is that it is vague. For years, this language left much to legal interpretation as to what exactly the owner was responsible for and where does maintenance begin and repair or replacement end. Fortunately, our legislature provided a degree of relief in the following amended Civil Code § 4775 adding section (a) (3), which takes effect January 1, 2017. The clarified language provides that unless otherwise provided in the declaration of a common interest development: “The owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest.” The association is responsible for repairing and replacing the exclusive use common area. Although this revised language clarifies the line between maintenance of the exclusive use common area, and repair and replacement of that exclusive use common area, the amendment doesn’t really change the law....
Thou Shalt Not

Thou Shalt Not

Thou shalt not prohibit the display of religious ornaments without first carefully considering the many law and legal precedents related to freedom of expression. With the sweep of his pen, on the eve of Passover 2006, Illinois Gov. Rod R. Blagojevich barred Illinois condominium associations from exercising architectural control over what residents can place on the exteriors of their front doors. According to the governor, “being able to display religious symbols is just as fundamental as being able to practice religious beliefs.” The legislation, which amended the Illinois Condominium Property Act, goes into effect on Jan. 1, 2007. The new law stems from a long and emotionally charged dispute over the placement of a mezuzah—a small parchment scroll that observant Jews are required to display in the doorframes of homes, synagogues, and businesses—precipitated by a Chicago condominium association that tried to ban the display of religious symbols in common-area hallways. The sentiment behind the bill was summed up by its co-author, Illinois State Sen. Ira Silverstein, who told Editor & Publisher magazine that “the United States Constitution already protected these individuals who were so unjustly stripped of what they believed were their First Amendment rights.” Angels in America Just as the battle between “blue states” and “red states” rages throughout the country, we’re seeing increased debate over religious symbols in the public square, fueled by the ongoing struggle between the free exercise of religion and the separation of church and state. In June 2005, the U.S. Supreme Court issued two divergent opinions, both related to the Ten Commandments, that established a litmus test for when it’s appropriate to display...
Birthing Homes in Community Associations

Birthing Homes in Community Associations

During an Association Board meeting I recently attended I was asked, “what can the Board do about a birth home?” I thought I had heard it all. For months, seemingly transient activity was taking place in a home within this North Orange County planned development community. Unfamiliar people were seen coming and going through all hours of the day and night. Neighbors observed what was described as suspicious activity and have concluded that a birth home is being operated out of the residence. In the most basic sense, a birthing home is a facility usually run by nurse-midwives that provides a less institutionalized setting than a hospital, for women who wish to deliver by natural childbirth. However, in the extreme these homes or birthing centers are residences used solely for the arrival of pregnant woman who reside there to give birth. In March 2015 Federal Agents stormed 37 properties throughout Southern California investigating what was then called illegal “birth tourism”, the practice of foreign pregnant woman, primarily Chinese, traveling to American to give birth in so called maternity hotels. This was the result of an investigation by the County of Los Angeles into maternity hotels after receiving complaints about 97 county locations being used as maternity hotels, 18 of which were shut down due to zoning violations. Eventually the complaints were referred to state and federal agencies including the Department of Homeland Security. Many of these maternity hotel sites were relatively unrecognizable, if not for the number for cars parked out front. Although the majority of the maternity homes seem to arise in apartment complexes, it should come as...
Controlling Rentals: Support for an Association’s Effort to Limit Short-Term Rentals

Controlling Rentals: Support for an Association’s Effort to Limit Short-Term Rentals

Short-term rentals, once a small segment of the hospitality industry, are becoming increasingly common as peer-to-peer websites like Airbnb make it substantially easier for homeowners to rent out their homes to vacationers. Airbnb, for those unfamiliar, connects homeowners via the internet with travelers seeking accommodations outside of traditional hotels at competitive, and often lower, prices. The website currently has over 1,500,000 listings in 34,000 cities and 190 countries. While Airbnb and similar websites such as vrbo.com provide a valuable service to travelers, the rapid expansion of the short-term rental market has caused considerable controversy. The home-sharing market has been accused of contributing to housing shortages in California and opening up travelers to scams. Accordingly, city and municipal governments are rushing to implement new regulations of short-term rentals, with varying degrees of success. Of course the short-term rental market is having a growing impact on community associations. Residents often complain that short-term renters – who are transient by definition – do not treat association common areas with the same care as owners and are unaware of association rules. Homeowners often complain of problems related to security, trash removal, parking, and noise caused by short-term renters. Associations are often faced with higher security, maintenance, and administrative costs due to the increased burden of handling short-term renters. And, on an emotional level, residents are often uncomfortable with the fact that their neighborhoods are filled with unfamiliar faces, with some renters on site for only brief periods of time. At the same time, however, some homeowners support short-term rentals arguing that they can provide homeowners with supplemental income and can prevent unoccupied units...
Avoiding Litigation: A Common Sense Approach To Keeping Your Community Out of the Court Room

Avoiding Litigation: A Common Sense Approach To Keeping Your Community Out of the Court Room

It has been said that anyone can sue you for anything. And no truer is that statement than in our community associations where emotions run high and conflicts are many. And this should come as no surprise to anyone: people of diverse backgrounds thrown together in communities governed by covenants, codes, rules, and regulations developed with the underlying goal of uniformity and consistency. And when we add to the mix violation letters, enforcement hearings and fines, it is no wonder that the threat of litigation is always on the horizon. Differences, respectful disagreement and debate are healthy for any community and should not lead to litigation provided the community is transparent in its governance, reasonable in its rule enforcement, and provides its members a voice – an opportunity to be heard. While it is impossible to completely eliminate the risk of litigation, the following guidelines should help you bring more harmony to your community and perhaps keep your association out of the courtroom. Transparency When members feel that matters are decided behind closed doors (regardless of what the Open Meeting Act requires) they begin to distrust their community leaders and management, and feel threatened by a perceived loss of liberties. But when matters are discussed and addressed openly, in properly agendized open Board meetings, town halls or community forums, members are less suspicious and are less threatened by rule enforcement and community governance. A Board that is receptive to member input, airs community issues publicly and makes decisions openly is less likely to be challenged in court. Policy, Procedure, and Protocol Uncertainty breeds hostility. Members need to know how...
Anatomy of a Neighbor-To-Neighbor Dispute

Anatomy of a Neighbor-To-Neighbor Dispute

Evaluate the facts presented In most common interest development communities, noises, vibrations, and other similar sounds of “life” are normal and should be expected. It is only when the activity of a resident rises to the level of being unreasonable, or begins to disrupt the entire community, that it becomes a matter that may require the association to act; to step in and protect that community. But where conduct gives rise to annoyance, disturbance, or interference with a single neighbor, without more, the dispute is generally considered one between neighbors and not one for the association to resolve.  The first question to consider is whether the facts presented identify a dispute between owners over their separate interests or about conduct committed on their lot, in their unit, within exclusive use common area or on common area. Examples of such conduct include: Smoking Noise Pets (dog barking) Activity at the pool Hard surface flooring Drugs (or other illegal activity) Criminal activity; security Determine whether the association has an obligation to get involved When an issue is first presented, the community manager must assist the board in determining whether the situation is an appropriate matter for association enforcement or, is it a neighbor to neighbor dispute that must be left for “adults” in a community to resolve. The question is not always easy to answer and may not be as simple as determining how many owners need to complain before a matter goes beyond simply a neighbor to neighbor dispute and becomes an association wide issue. The association covenants are enforceable both by the association and the owners. Civil Code Section...
Protect Your Association With Risk Management: Beware Of The Myths

Protect Your Association With Risk Management: Beware Of The Myths

Proper insurance in all forms is one of the most important means to protect your Association. But be careful of the many myths regarding insurance. For the Associations pursuing a major remodel, repair or reconstruction project, these urban legends, if believed, can have rather harmful consequences. Myth: Builders and contractors are all insured, and have to be insured in order to build. Unfortunately, this is simply not true. A contractor is required by most municipalities only to show proof of workers compensation insurance. This compensates only for injury to the builder’s employees. Myth: Contractors have a state-mandated insurance policy in place. Contractors are required by the Business and Professions Code to have a license bond. This bond is maintained by contractors to compensate the victims of any violations of the Contractors Licensing Laws. The bond is currently $7,500 – less than the cost of building a brick patio. Contractor license bonds permit recovery to claimants who demonstrate a contractor has violated one of the licensing laws. Unfortunately, incompetent construction is not a violation of the licensing law, and so the bond will not pay for the repairs to correct it. Myth: The contractor’s insurance will finish the job and pay the subcontractors if they are not paid by the contractor. Liability insurance issued to contractors does not cover breaches of contract, but only covers negligence. If one desires to insure the completion of a project, a “performance bond” is needed; for insurance against mechanics liens, and against non-payment of sub-contractors and building material suppliers, a “payment bond”. These two bonds are typically sold in a package, and are usually...
Construction Defect Claims: What Homeowners Need To Know Before Pursuing Defect Claims Under The Current Statutory Scheme

Construction Defect Claims: What Homeowners Need To Know Before Pursuing Defect Claims Under The Current Statutory Scheme

In the fall of 2002, the passage of SB 800 reverberated through the construction defect industry as a response to the California Supreme Court decision in Aas v. Superior Court. Aas held that the home-owners association could not recover in tort (i.e., negligence, strict liability) for construction defect claims that have not yet caused property damage. The impact of this decision was that absent any actual damage, a claim for negligence or strict liability could not be made, and any remedy for purely economic loss could be pursued only as breach of contract and/or a breach of express and implied warranty claim. The Aas decision created a serious problem for community associations trying to recover funds to repair obvious defects that had not yet caused damage. As a result, support grew to create a law that would reverse the impact of the Aas decision. Although it was loosely billed as the plaintiff attorneys’ response to the Aas decision, the law was viewed by many as a victory for developers. It redefined the term “defect” and established a scheme of new statutes of limitation for categories of building defects that apply to residential units sold on and after January 1, 2003. SB 800 (now codified in Civil Code Sections 895 through 945.5) changed significantly the way in which homeowners and common interest developments must address construction defects. This bill 1) provides for detailed and specific liability standards for newly constructed housing; 2) identifies specific types of defects that will give rise to claims regardless of whether the defect caused damage to other property; 3) creates a pre-trial process that includes...